Hay V Gordon.
This was an action brought by the plaintiff against the defendant,
Storekeeper
at the Female Factory, Paramatta, to recover
the sum of £60, under the following circumstances:- It appeared that,
in the year 1829, plaintiff went into the interior, and having a sum of
money in his possession, he called upon the defendant, who had been employed
with him in the Commissariat Stores in Sydney, and were on the most intimate
terms, for the purpose of placing it in his hands for security; defendant
took possession of the money, and gave his undertaking in writing for the
amount, with interest at 25 per cent. for the use of it until called for;
plaintiff, at the same time, left his watch and a quantity of wearing apparel;
he received, during his stay in the interior a sum of £4, and, on
his return from the interior, a further sum of £5, together with
his watch and wearing apparel, for which he signed a receipt written by
the defendant; having, subsequently, occasion for the residue of the amount
in defendant's hands, he made repeated applications without effect, being
put off, from time to time, with a variety of excuses; plaintiff subsequently
went to Moreton Bay where he remained a considerable time, and, on his
return to Sydney, renewed his demands upon the defendant, with no better
success than before; finding that defendant evinced no disposition to make
any settlement of his claims he made a final application, taking a person
with him as a witness to what defendant might say on the subject; defendant
was sitting at the gate of the Factory when plaintiff arrived there, and
a conversation took place with reference to the claim; defendant seeing
a third party, and being aware of the object of the visit, evinced some
hesitation in entering upon the subject, saying that he would arrange the
matter on the following day; plaintiff said he would have no more of his
tricks, and high words arose; defendant observed, that as it had come to
that pitch, he could inform plaintiff that if accounts were balanced, he
did not think there would be above a pound or two in his favor, but declined
giving any further satisfaction, and expressed himself with the greatest
caution in the presence of the witness, who remained at the distance of
a few yards, so that he might hear what transpired. Plaintiff immediately
instituted the present action; the undertaking of defendant was put in
and proved. On the part of the defendant a receipt for £4, and also
one for a watch and wearing apparel and £55, which bore the signature
of the plaintiff, but on inspection it appeared, according to the opinion
of a witness who was put into the box by the defendant's counsel, for the
purpose of proving the plaintiff's signature, that the word ``fifty" with
the corresponding figure at the head of the receipt, had been inserted
subsequently to its execution for the watch and wearing apparel, together
with a sum of £5 only; the word fifty seemed to have been written
with different ink from that of the other parts of the receipt, and to
have been crowded in; defendant had stated, that the body of the receipt
had been written by Mr. Commissary Bowerman, which gentleman was subpoenaed
by plaintiff's attorney, to give testimony to that fact, as it was doubted.
Mr. Bowerman attended at the office of Mr. Allan, and stated, that he had
not written the receipt for the defendant as stated by him. The receipt
ran in these words - ``Received from Mr. J. Gordon, my watch, wearing apparel,
and fifty five pounds, signed, W. Hay." It was therefore argued by the
Counsel for the plaintiff as clear that the amount had been inserted subsequently.
What man giving a receipt for so large a sum as fifty-five pounds, would
commence that receipt with the acknowledgment of a watch and wearing apparel?
the very nature of the receipt itself, independently of its appearance,
where the words `fifty-five' had been crowded in, was sufficient to stamp
it as an unworthy document, for the purpose of avoiding a just claim. Mr.
Bowerman was called but did not appear; the receipt, however, was recognised
as the hand-writing of the defendant. His Honor, in putting the case to
the assessors, made some observation as to the undertaking of the defendant
to pay interest at the rate of 25 per cent; the law had confined the interest
to 8 per cent., but if parties were weak enough to give an undertaking
for so enormous a rate of interest in the face of the law, of course the
Court could not interfere. The
question for their consideration, looking at the evidence which had been
adduced, and the document before them, was, whether the same was a bona
fide release for the sum of £55, under the hand of the plaintiff;
if they were of opinion that the words `fifty-five' had been inserted by
the defendant himself for the purpose of fraud, they would say so by their
verdict. The assessors returned a verdict for the plaintiff, of £121
7s. 5d.

Transcriber's Note:Hay v Gordon
and MacDonald V Levy1833 are the earliest colonial cases cited for
the Australian common law in respect of usury (the lending of money at
above the legal rate of interest).